Federal Acquisition Regulation; Representation Regarding Export of Sensitive Technology to Iran, 68028-68032 [2011-27784]
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68028
Federal Register / Vol. 76, No. 212 / Wednesday, November 2, 2011 / Rules and Regulations
III. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is a significant
regulatory action and, therefore, was
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
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IV. Regulatory Flexibility Act
The Department of Defense, the
General Services Administration, and
the National Aeronautics and Space
Administration certify that this final
rule will not have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., because this
rule will only have impact on an offeror
that is engaging in an activity for which
sanctions may be imposed under section
5 of the Iran Sanctions Act or that is
exporting sensitive technology to Iran.
This rule will have little effect on
domestic small business concerns,
because such dealings with Iran are
already generally prohibited under U.S.
law. Due to current restrictions on trade
with Iran, domestic entities are
generally prohibited from engaging in
activity that would cause them to be
subject to the procurement bans
described in this rule (see e.g.,
Department of the Treasury Office of
Foreign Assets Control regulations at 31
CFR part 560). Accordingly, it is
expected that the number of domestic
entities, both large and small,
significantly impacted by this rule will
be minimal, if any.
Although this rule mainly affects
foreign entities, the Regulatory
Flexibility Act is for the protection of
domestic small entities, not foreign
entities. For the definition of ‘‘small
business’’, the Regulatory Flexibility Act
refers to the Small Business Act, which
in turn allows the Small Business
Administration (SBA) Administrator to
specify detailed definitions or standards
(5 U.S.C. 601(3) and 15 U.S.C. 632(a)).
The SBA regulations at 13 CFR 121.105
discuss who is a small business: ‘‘(a)(1)
Except for small agricultural
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cooperatives, a business concern eligible
for assistance from SBA as a small
business is a business entity organized
for profit, with a place of business
located in the United States, and which
operates primarily within the United
States or which makes a significant
contribution to the U.S. economy
through payment of taxes or use of
American products, materials or labor.’’
Therefore, the impact assessment does
not include the impact on foreign
entities.
V. Paperwork Reduction Act
The final rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 4, 25,
and 52
Government procurement.
Dated: October 21, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide
Acquisition Policy, Office of Acquisition
Policy, Office of Governmentwide Policy.
Interim Rule Adopted as Final With
Change
Accordingly, the interim rule
amending 48 CFR parts 4, 25, and 52
which was published in the Federal
Register at 75 FR 60254 on September
29, 2010, is adopted as final with the
following change:
PART 25—FOREIGN ACQUISITION
1. The authority citation for 48 CFR
part 25 continues to read as follows:
■
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 25.1103 by revising
paragraph (e) to read as follows:
■
25.1103
Other provisions and clauses.
*
*
*
*
*
(e) The contracting officer shall
include in all solicitations the provision
at 52.225–25, Prohibition on Contracting
with Entities Engaging in Sanctioned
Activities Relating to Iran—
Representation and Certification.
[FR Doc. 2011–27783 Filed 11–1–11; 8:45 am]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 4, 25, and 52
[FAC 2005–54; FAR Case 2010–018; Item
V; Docket 2010–0018, Sequence 1]
RIN 9000–AL91
Federal Acquisition Regulation;
Representation Regarding Export of
Sensitive Technology to Iran
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule.
AGENCY:
DoD, GSA, and NASA are
issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to
add a representation to implement
section 106 of the Comprehensive Iran
Sanctions, Accountability, and
Divestment Act of 2010. Section 106
imposes a procurement prohibition
relating to contracts with persons that
export certain sensitive technology to
Iran.
SUMMARY:
Effective Date: November 2,
2011.
Comment Date: Interested parties
should submit written comments to the
Regulatory Secretariat at one of the
addresses shown below on or before
January 3, 2012 to be considered in the
formulation of the final rule.
ADDRESSES: Submit comments
identified by FAC 2005–54, FAR Case
2010–018 by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov.
Submit comments via the Federal
eRulemaking portal by inputting ‘‘FAR
Case 2010–018’’ under the heading
‘‘Enter Keyword or ID’’ and selecting
‘‘Search.’’ Select the link ‘‘Submit a
Comment’’ that corresponds with ‘‘FAR
Case 2010–018.’’ Follow the instructions
provided at the ‘‘Submit a Comment’’
screen. Please include your name,
company name (if any), and ‘‘FAR Case
2010–018’’ on your attached document.
• Fax: (202) 501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), ATTN: Hada Flowers, 1275
First Street, NE., 7th Floor, Washington,
DC 20417.
Instructions: Please submit comments
only and cite FAC 2005–54, FAR Case
2010–018, in all correspondence related
DATES:
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to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Ms.
Cecelia L. Davis, Procurement Analyst,
at (202) 219–0202, for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at (202) 501–
4755. Please cite FAC 2005–54, FAR
Case 2010–018.
SUPPLEMENTARY INFORMATION:
I. Background and Discussion
This interim rule expands upon the
interim rule published in the Federal
Register at 75 FR 60254 on September
29, 2010, under FAR Case 2010–012,
Certification Requirement and
Procurement Prohibition Relating to
Iran Sanctions. FAR Case 2010–012
implementation of section 106 of the
Comprehensive Iran Sanctions,
Accountability, and Divestment Act of
2010 (Pub. L. 111–195), included
imposing a procurement prohibition
relating to contracts with persons that
export certain sensitive technology to
Iran. To further implement section 106,
the rule adds at FAR 25.703–3(b) a
requirement for a representation that the
offeror does not export any sensitive
technology to the government of Iran or
any entities or individuals owned or
controlled by, or acting on behalf or at
the direction of, the government of Iran.
The interim rule provides an
exception to the representation
requirement for offerors that are
providing eligible products in
acquisitions that are subject to trade
agreements.
The waiver procedure at FAR 25.703–
2(d) is moved to FAR 25.703–4, so that
waiver of section 106 can be addressed
along with the procedures for waiver of
section 102 of the Comprehensive Iran
Sanctions, Accountability, and
Divestment Act of 2010.
The representation that the offeror
does not export sensitive technology to
Iran is incorporated into the
certification at FAR 52.225–25, now
titled ‘‘Prohibition on Contracting with
Entities Engaging in Sanctioned
Activities Relating to Iran—
Representation and Certification,’’ in
order to include the representation and
clarify that the prohibition is against
contracting with sanctioned entities.
Along with the statutory definition of
‘‘sensitive technology,’’ an email
address is included in the provision, so
that offerors can refer questions
concerning sensitive technology to the
Department of State, prior to making the
representation.
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This representation requirement is
also applied to acquisition of
commercial items at FAR 52.212–3,
Offeror Representations and
Certifications—Commercial Items,
paragraph (o) (see section III,
Determinations of Applicability).
Offerors will be able to make an
annual certification through the Online
Representations and Certifications
Application, if the offeror is registered
in the Central Contractor Registration
database. Therefore, conforming
changes have been made to FAR part 4
and the FAR clause at 52.204–8, Annual
Representations and Certifications.
The interim rule includes two
additional changes:
• FAR 25.703–2(b)—Adds an
authority for termination—FAR part 49
and a cite to FAR 12.403 for termination
of commercial contracts.
• FAR 52.225–25(d)—Adds two more
examples of trade agreement provisions
that may be included in the solicitation
to indicate the applicability of trade
agreements to the acquisition.
than the SAT. It is intended to limit the
applicability of laws to them. 41 U.S.C.
1905 provides that if a provision of law
contains criminal or civil penalties, or if
the FAR Council makes a written
determination that it is not in the best
interest of the Federal Government to
exempt contracts or subcontracts at or
below the SAT, the law will apply to
them. Therefore, given that the
requirements of sections 102 and 106 of
the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of
2010 were enacted to widen the
sanctions against Iran, the FAR Council
has determined that it is in the best
interest of the Federal Government to
apply this rule to all acquisitions
including contracts at or below the SAT,
as defined at FAR 2.101. An exception
for acquisitions at or below the SAT
would exclude a significant portion of
Federal contracting and the contractors
who provide these products and
services, thereby undermining the
overarching public policy purpose of
the law.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is a significant
regulatory action and, therefore, was
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
2. Applicability to Contracts for the
Acquisition of Commercial Items
41 U.S.C. 1906 governs the
applicability of laws to contracts for the
acquisition of commercial items, and is
intended to limit the applicability of
laws to contracts for the acquisition of
commercial items. 41 U.S.C. 1906
provides that if a provision of law
contains criminal or civil penalties, or if
the FAR Council makes a written
determination that it is not in the best
interest of the Federal Government to
exempt commercial item contracts, the
provision of law will apply to contracts
for the acquisition of commercial items.
Therefore, given that the requirements
of sections 102 and 106 of the
Comprehensive Iran Sanctions,
Accountability, and Divestment Act of
2010 were enacted to widen the
sanctions against Iran, the FAR Council
has determined that it is in the best
interest of the Federal Government to
apply the rule to contracts for the
acquisition of commercial items, as
defined at FAR 2.101. An exception for
contracts for the acquisition of
commercial items would exclude a
significant portion of Federal
contracting and the contractors who
provide these products and services,
thereby undermining the overarching
public policy purpose of the law.
III. Determinations of Applicability
The Federal Acquisition Regulatory
Council (FAR Council) has made a
determination to apply the requirement
of section 106 of the Comprehensive
Iran Sanctions, Accountability, and
Divestment Act of 2010, to contracts at
or below the simplified acquisition
threshold (SAT), contracts for the
acquisition of commercial items, and
contracts for the acquisition of
commercially available off-the-shelf
(COTS) items.
1. Applicability to Contracts at or Below
the SAT
41 U.S.C. 1905 governs the
applicability of laws to contracts or
subcontracts in amounts not greater
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3. Applicability to Contracts for the
Acquisition of COTS Items
41 U.S.C. 1907 governs the
applicability of laws to contracts for the
acquisition of COTS items, and is
intended to limit the applicability of
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laws to them. 41 U.S.C. 1907 provides
that if a provision of law contains
criminal or civil penalties, or if the
Administrator for Federal Procurement
Policy makes a written determination
that it is not in the best interest of the
Federal Government to exempt contracts
for the acquisition of COTS items, the
provision of law will apply. Therefore,
given that the requirements of sections
102 and 106 of the Comprehensive Iran
Sanctions, Accountability, and
Divestment Act of 2010 were enacted to
widen the sanctions against Iran, the
Administrator for Federal Procurement
Policy has determined that it is in the
best interest of the Federal Government
to apply the rule to contracts for the
acquisition of COTS items, as defined at
FAR 2.101. An exception for contracts
for the acquisition of COTS items would
exclude a significant portion of Federal
contracting and the contractors who
provide these products and services,
thereby undermining the overarching
public policy purpose of the law.
IV. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect
this interim rule to have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., because this
rule will only have an impact on an
offeror that is exporting sensitive
technology to Iran. Domestic entities are
generally prohibited from engaging in
activity that would cause them to be
subject to the procurement bans
described in this rule due to current
restrictions on trade with Iran (see, e.g.,
Department of the Treasury Office of
Foreign Assets Control regulations at 31
CFR part 560).
Although this rule mainly affects
foreign entities, the Regulatory
Flexibility Act is for the protection of
domestic small entities, not foreign
entities. For the definition of ‘‘small
business,’’ the Regulatory Flexibility Act
refers to the Small Business Act, which
in turn allows the U.S. Small Business
Administration (SBA) Administrator to
specify detailed definitions or standards
(5 U.S.C. 601(3) and 15 U.S.C. 632(a)).
The SBA regulations at 13 CFR 121.105
discuss who is a small business: ‘‘(a)(1)
Except for small agricultural
cooperatives, a business concern eligible
for assistance from SBA as a small
business is a business entity organized
for profit, with a place of business
located in the United States, and which
operates primarily within the United
States or which makes a significant
contribution to the U.S. economy
through payment of taxes or use of
American products, materials or labor.’’
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Therefore, an Initial Regulatory
Flexibility Analysis has not been
performed because the number of
domestic entities significantly impacted
by this rule will be minimal. DoD, GSA,
and NASA invite comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD, GSA, and NASA will also
consider comments from small entities
concerning the existing regulations in
subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested
parties must submit such comments
separately and should cite 5 U.S.C. 610
(FAC 2005–54, FAR Case 2010–018), in
correspondence.
V. Paperwork Reduction Act
Dated: October 21, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide
Acquisition Policy, Office of Acquisition
Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 4, 25, and 52 as set
forth below:
■ 1. The authority citation for 48 CFR
parts 4, 25, and 52 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
PART 4—ADMINISTRATIVE MATTERS
2. Amend section 4.1202 by revising
paragraph (y) to read as follows:
■
4.1202 Solicitation provision and contract
clause.
The interim rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
*
VI. Determination To Issue an Interim
Rule
PART 25—FOREIGN ACQUISITION
A determination has been made under
the authority of the Secretary of Defense
(DoD), the Administrator of General
Services (GSA), and the Administrator
of the National Aeronautics and Space
Administration (NASA) that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. FAR
Case 2010–012 implemented section
102 and partially implemented section
106 of the Comprehensive Iran
Sanctions, Accountability, and
Divestment Act of 2010 (Pub. L. 111–
195). This interim rule is necessary
because the rule further implements
section 106 of the Comprehensive Iran
Sanctions, Accountability, and
Divestment Act of 2010, which was
signed on July 1, 2010. Section 106 was
effective upon enactment, which
imposed a procurement prohibition
relating to contracts with persons that
export certain sensitive technology to
Iran entered into or renewed on or after
September 29, 2010. However, pursuant
to 41 U.S.C. 1707 and FAR 1.501–3(b),
DoD, GSA, and NASA will consider
public comments received in response
to this interim rule in the formation of
the final rule.
List of Subjects in 48 CFR Parts 4, 25,
and 52
Government procurement.
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(y) 52.225–25, Prohibition on
Contracting with Entities Engaging in
Sanctioned Activities Relating to Iran—
Representation and Certification.
*
*
*
*
*
3. Amend section 25.703–1 by—
a. Revising the section heading;
b. Adding an introductory paragraph;
and
■ c. Adding, in alphabetical order, the
definition ‘‘Sensitive technology’’.
The revised and added text reads as
follows:
■
■
■
25.703–1
Definitions.
As used in this subpart—
*
*
*
*
*
Sensitive technology—
(1) Means hardware, software,
telecommunications equipment, or any
other technology that is to be used
specifically—
(i) To restrict the free flow of unbiased
information in Iran; or
(ii) To disrupt, monitor, or otherwise
restrict speech of the people of Iran; and
(2) Does not include information or
informational materials the export of
which the President does not have the
authority to regulate or prohibit
pursuant to section 203(b)(3) of the
International Emergency Economic
Powers Act (50 U.S.C. 1702(b)(3)).
■ 4. Amend section 25.703–2 by
revising paragraphs (a)(1) and (b)(1); and
removing paragraph (d).
The revised text reads as follows:
25.703–2
Iran Sanctions Act.
(a) * * *
(1) As required by the Iran Sanctions
Act (50 U.S.C. 1701 note), unless an
exception applies in accordance with
paragraph (c) of this section, or a waiver
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is granted in accordance with 25.703–4,
each offeror must certify that the offeror,
and any person owned or controlled by
the offeror, does not engage in any
activity for which sanctions may be
imposed under section 5 of the Iran
Sanctions Act.
*
*
*
*
*
(b) * * *
(1) The contracting officer may
terminate the contract in accordance
with procedures in part 49, or for
commercial items, 12.403.
*
*
*
*
*
■ 5. Revise section 25.703–3 to read as
follows:
25.703–3 Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010,
section 106.
(a) The head of an Executive agency
may not enter into or extend a contract
for the procurement of goods or services
with a person that exports certain
sensitive technology to Iran, as
determined by the President and listed
on the Excluded Parties List System at
https://www.epls.gov.
(b) Each offeror must represent that it
does not export any sensitive
technology to the government of Iran or
any entities or individuals owned or
controlled by, or acting on behalf or at
the direction of, the government of Iran.
(c) Exception for trade agreements.
The representation requirement of
paragraph (b) of this subsection does not
apply with respect to the procurement
of eligible products, as defined in
section 308(4) of the Trade Agreements
Act of 1974 (19 U.S.C. 2518(4)), of any
foreign country or instrumentality
designated under section 301(b) of that
Act (19 U.S.C. 2511(b)) (see subpart
25.4).
■ 6. Add section 25.703–4 to read as
follows:
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25.703–4
Waiver.
(a) An agency or contractor seeking a
waiver of these requirements, consistent
with section 6(b)(5) of the Iran
Sanctions Act or section 401(b) of the
Comprehensive Iran Sanctions,
Accountability, and Divestment Act of
2010 (Pub. L. 111–195), and the
Presidential Memorandum of September
23, 2010 (75 FR 67025), shall submit the
request to the Office of Federal
Procurement Policy, allowing sufficient
time for review and approval.
(b) Agencies may request a waiver on
an individual or class basis; however,
waivers are not indefinite and can be
cancelled, if warranted.
(1) A class waiver may be requested
only when the class of supplies or
equipment is not available from any
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other source and it is in the national
interest.
(2) Prior to submitting the waiver
request, the request must be reviewed
and cleared by the agency head.
(c) In general, all waiver requests
should include the following
information:
(1) Agency name, complete mailing
address, and point of contact name,
telephone number, and email address.
(2) Offeror’s name, complete mailing
address, and point of contact name,
telephone number, and email address.
(3) Description/nature of product or
service.
(4) The total cost and length of the
contract.
(5) Justification, with market research
demonstrating that no other offeror can
provide the product or service and
stating why the product or service must
be procured from this offeror, as well as
why it is in the national interest for the
President to waive the prohibition on
contracting with this offeror that—
(i) Conducts activities for which
sanctions may be imposed under section
5 of the Iran Sanctions Act; or
(ii) Exports sensitive technology to the
government of Iran or any entities or
individuals owned or controlled by, or
acting on behalf or at the direction of,
the government of Iran.
(6) Documentation regarding the
offeror’s past performance and integrity
(see the Past Performance Information
Retrieval System and the Federal
Awardee Performance Information and
Integrity System at https://
www.ppirs.gov, and any other relevant
information).
(7) Information regarding the offeror’s
relationship or connection with other
firms that—
(i) Conduct activities for which
sanctions may be imposed under section
5 of the Iran Sanctions Act; or
(ii) Export sensitive technology to the
government of Iran or any entities or
individuals owned or controlled by, or
acting on behalf or at the direction of,
the government of Iran.
(8) Describe—
(i) The activities in which the offeror
is engaged for which sanctions may be
imposed under section 5 of the Iran
Sanctions Act; or
(ii) The sensitive technology and the
entity or individual to which it was
exported (i.e., the government of Iran or
an entity or individual owned or
controlled by, or acting on behalf or at
the direction of, the government of Iran).
■ 7. Amend section 25.1103 by revising
paragraph (e) to read as follows:
25.1103
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Other provisions and clauses.
*
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68031
(e) The contracting officer shall
include in all solicitations the provision
at 52.225–25, Prohibition on Contracting
with Entities Engaging in Sanctioned
Activities Relating to Iran—
Representation and Certification.
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
8. Amend section 52.204–8 by
revising the date of the provision and
paragraph (c)(1)(xx) to read as follows:
■
52.204–8 Annual Representations and
Certifications.
*
*
*
*
*
Annual Representations and
Certifications (NOV 2011)
*
*
*
*
*
(c) * * *
(1) * * *
(xx) 52.225–25, Prohibition on Contracting
with Entities Engaging in Sanctioned
Activities Relating to Iran—Representation
and Certification. This provision applies to
all solicitations.
*
*
*
*
*
9. Revise section 52.212–3 by—
a. Revising the date of the provision;
b. In paragraph (a), adding, in
alphabetical order, the definition
‘‘Sensitive technology’’; and
■ c. Revising paragraph (o).
The revised and added text reads as
follows:
■
■
■
52.212–3 Offeror Representations and
Certifications—Commercial Items.
*
*
*
*
*
Offer Representations and
Certifications—Commercial Items
(NOV 2011)
*
*
*
*
*
(a) Definitions. * * *
*
*
*
*
*
Sensitive technology—
(1) Means hardware, software,
telecommunications equipment, or any other
technology that is to be used specifically—
(i) To restrict the free flow of unbiased
information in Iran; or
(ii) To disrupt, monitor, or otherwise
restrict speech of the people of Iran; and
(2) Does not include information or
informational materials the export of which
the President does not have the authority to
regulate or prohibit pursuant to section
203(b)(3) of the International Emergency
Economic Powers Act (50 U.S.C. 1702(b)(3)).
*
*
*
*
*
(o) Sanctioned activities relating to Iran. (1)
The offeror shall email questions concerning
sensitive technology to the Department of
State at CISADA106@state.gov.
(2) Representation and Certification.
Unless a waiver is granted or an exception
applies as provided in paragraph (o)(3) of this
provision, by submission of its offer, the
offeror—
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02NOR4
68032
Federal Register / Vol. 76, No. 212 / Wednesday, November 2, 2011 / Rules and Regulations
(i) Represents, to the best of its knowledge
and belief, that the offeror does not export
any sensitive technology to the government
of Iran or any entities or individuals owned
or controlled by, or acting on behalf or at the
direction of, the government of Iran; and
(ii) Certifies that the offeror, or any person
owned or controlled by the offeror, does not
engage in any activities for which sanctions
may be imposed under section 5 of the Iran
Sanctions Act.
(3) The representation and certification
requirements of paragraph (o)(2) of this
provision do not apply if—
(i) This solicitation includes a trade
agreements certification (e.g., 52.212–3(g) or
a comparable agency provision); and
(ii) The offeror has certified that all the
offered products to be supplied are
designated country end products.
*
*
*
*
*
10. Revise section 52.225–25 to read
as follows:
■
52.225–25 Prohibition on Contracting with
Entities Engaging in Sanctioned Activities
Relating to Iran—Representation and
Certification.
As prescribed at 25.1103(e), insert the
following provision:
mstockstill on DSK4VPTVN1PROD with RULES4
Prohibition on Contracting With
Entities Engaging in Sanctioned
Activities Relating to Iran—
Representation and Certification
(NOV 2011)
[FR Doc. 2011–27784 Filed 11–1–11; 8:45 am]
BILLING CODE 6820–EP–P
(a) Definitions. As used in this provision—
Person—
(1) Means—
(i) A natural person;
(ii) A corporation, business association,
partnership, society, trust, financial
institution, insurer, underwriter, guarantor,
and any other business organization, any
other nongovernmental entity, organization,
or group, and any governmental entity
operating as a business enterprise; and
(iii) Any successor to any entity described
in paragraph (1)(ii) of this definition; and
(2) Does not include a government or
governmental entity that is not operating as
a business enterprise.
Sensitive technology—
(1) Means hardware, software,
telecommunications equipment, or any other
technology that is to be used specifically—
(i) To restrict the free flow of unbiased
information in Iran; or
(ii) To disrupt, monitor, or otherwise
restrict speech of the people of Iran; and
(2) Does not include information or
informational materials the export of which
the President does not have the authority to
regulate or prohibit pursuant to section
203(b)(3) of the International Emergency
Economic Powers Act (50 U.S.C. 1702(b)(3)).
(b) The offeror shall email questions
concerning sensitive technology to the
Department of State at
CISADA106@state.gov.
(c) Except as provided in paragraph (d) of
this provision or if a waiver has been granted
in accordance with 25.703–4, by submission
of its offer, the offeror—
VerDate Mar<15>2010
18:15 Nov 01, 2011
Jkt 226001
(1) Represents, to the best of its knowledge
and belief, that the offeror does not export
any sensitive technology to the government
of Iran or any entities or individuals owned
or controlled by, or acting on behalf or at the
direction of, the government of Iran; and
(2) Certifies that the offeror, or any person
owned or controlled by the offeror, does not
engage in any activities for which sanctions
may be imposed under section 5 of the Iran
Sanctions Act. These sanctioned activities
are in the areas of development of the
petroleum resources of Iran, production of
refined petroleum products in Iran, sale and
provision of refined petroleum products to
Iran, and contributing to Iran’s ability to
acquire or develop certain weapons or
technologies.
(d) Exception for trade agreements. The
representation requirement of paragraph
(c)(1) and the certification requirement of
paragraph (c)(2) of this provision do not
apply if—
(1) This solicitation includes a trade
agreements notice or certification (e.g.,
52.225–4, 52.225–6, 52.225–12, 52.225–24, or
comparable agency provision); and
(2) The offeror has certified that all the
offered products to be supplied are
designated country end products or
designated country construction material.
(End of provision)
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 8, 12, 16, 19, 38, and 52
[FAC 2005–54; FAR Case 2011–024; Item
VI; Docket 2011–0024, Sequence 01]
RIN 9000–AM12
Federal Acquisition Regulation; SetAsides for Small Business
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule.
AGENCY:
DoD, GSA, and NASA are
issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to
implement section 1331 of the Small
Business Jobs Act of 2010 (Jobs Act).
Section 1331 addresses set-asides of
task- and delivery-orders under
multiple-award contracts, partial setasides under multiple-award contracts,
and the reserving of one or more
multiple-award contracts that are
awarded using full and open
competition. Within this same context,
SUMMARY:
PO 00000
Frm 00020
Fmt 4701
Sfmt 4700
section 1331 also addresses the Federal
Supply Schedules Program managed by
GSA. DoD, GSA, and NASA are
coordinating with the Small Business
Administration (SBA) on the
development of an SBA proposed rule
that will provide greater detail regarding
implementation of section 1331
authorities.
Effective Date: November 2,
2011.
Comment Date: Interested parties
should submit written comments to the
Regulatory Secretariat on or before
January 3, 2012 to be considered in the
formation of a final rule.
Applicability Date: Contracting
officers are encouraged to modify, on a
bilateral basis, existing multiple-award
contracts in accordance with FAR
1.108(d)(3), if the remaining period of
performance extends at least six months
after the effective date, and the amount
of work or number of orders expected
under the remaining performance
period is substantial.
ADDRESSES: Submit comments
identified by FAC 2005–54, FAR Case
2011–024, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘FAR Case 2011–024’’ under
the heading ‘‘Enter Keyword or ID’’ and
selecting ‘‘Search.’’ Select the link
‘‘Submit a Comment’’ that corresponds
with ‘‘FAR Case 2011–024.’’ Follow the
instructions provided at the ‘‘Submit a
Comment’’ screen. Please include your
name, company name (if any), and
‘‘FAR Case 2011–024’’ on your attached
document.
• Fax: (202) 501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), ATTN: Hada Flowers, 1275
First Street, NE., 7th Floor, Washington,
DC 20417.
Instructions: Please submit comments
only and cite FAC 2005–54, FAR Case
2011–024, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Mr.
Karlos Morgan, Procurement Analyst, at
(202) 501–2364, for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at (202) 501–
4755. Please cite FAC 2005–54, FAR
Case 2011–024.
SUPPLEMENTARY INFORMATION:
DATES:
E:\FR\FM\02NOR4.SGM
02NOR4
]]>Agencies
[Federal Register Volume 76, Number 212 (Wednesday, November 2, 2011)]
[Rules and Regulations]
[Pages 68028-68032]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27784]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 4, 25, and 52
[FAC 2005-54; FAR Case 2010-018; Item V; Docket 2010-0018, Sequence 1]
RIN 9000-AL91
Federal Acquisition Regulation; Representation Regarding Export
of Sensitive Technology to Iran
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to add a representation to
implement section 106 of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010. Section 106 imposes a
procurement prohibition relating to contracts with persons that export
certain sensitive technology to Iran.
DATES: Effective Date: November 2, 2011.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat at one of the addresses shown below on or
before January 3, 2012 to be considered in the formulation of the final
rule.
ADDRESSES: Submit comments identified by FAC 2005-54, FAR Case 2010-018
by any of the following methods:
Regulations.gov: https://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2010-018'' under the heading ``Enter Keyword or ID'' and
selecting ``Search.'' Select the link ``Submit a Comment'' that
corresponds with ``FAR Case 2010-018.'' Follow the instructions
provided at the ``Submit a Comment'' screen. Please include your name,
company name (if any), and ``FAR Case 2010-018'' on your attached
document.
Fax: (202) 501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAC 2005-54, FAR
Case 2010-018, in all correspondence related
[[Page 68029]]
to this case. All comments received will be posted without change to
https://www.regulations.gov, including any personal and/or business
confidential information provided.
FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement
Analyst, at (202) 219-0202, for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-54, FAR
Case 2010-018.
SUPPLEMENTARY INFORMATION:
I. Background and Discussion
This interim rule expands upon the interim rule published in the
Federal Register at 75 FR 60254 on September 29, 2010, under FAR Case
2010-012, Certification Requirement and Procurement Prohibition
Relating to Iran Sanctions. FAR Case 2010-012 implementation of section
106 of the Comprehensive Iran Sanctions, Accountability, and Divestment
Act of 2010 (Pub. L. 111-195), included imposing a procurement
prohibition relating to contracts with persons that export certain
sensitive technology to Iran. To further implement section 106, the
rule adds at FAR 25.703-3(b) a requirement for a representation that
the offeror does not export any sensitive technology to the government
of Iran or any entities or individuals owned or controlled by, or
acting on behalf or at the direction of, the government of Iran.
The interim rule provides an exception to the representation
requirement for offerors that are providing eligible products in
acquisitions that are subject to trade agreements.
The waiver procedure at FAR 25.703-2(d) is moved to FAR 25.703-4,
so that waiver of section 106 can be addressed along with the
procedures for waiver of section 102 of the Comprehensive Iran
Sanctions, Accountability, and Divestment Act of 2010.
The representation that the offeror does not export sensitive
technology to Iran is incorporated into the certification at FAR
52.225-25, now titled ``Prohibition on Contracting with Entities
Engaging in Sanctioned Activities Relating to Iran--Representation and
Certification,'' in order to include the representation and clarify
that the prohibition is against contracting with sanctioned entities.
Along with the statutory definition of ``sensitive technology,'' an
email address is included in the provision, so that offerors can refer
questions concerning sensitive technology to the Department of State,
prior to making the representation.
This representation requirement is also applied to acquisition of
commercial items at FAR 52.212-3, Offeror Representations and
Certifications--Commercial Items, paragraph (o) (see section III,
Determinations of Applicability).
Offerors will be able to make an annual certification through the
Online Representations and Certifications Application, if the offeror
is registered in the Central Contractor Registration database.
Therefore, conforming changes have been made to FAR part 4 and the FAR
clause at 52.204-8, Annual Representations and Certifications.
The interim rule includes two additional changes:
FAR 25.703-2(b)--Adds an authority for termination--FAR
part 49 and a cite to FAR 12.403 for termination of commercial
contracts.
FAR 52.225-25(d)--Adds two more examples of trade
agreement provisions that may be included in the solicitation to
indicate the applicability of trade agreements to the acquisition.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and Review
dated September 30, 1993. This rule is not a major rule under 5 U.S.C.
804.
III. Determinations of Applicability
The Federal Acquisition Regulatory Council (FAR Council) has made a
determination to apply the requirement of section 106 of the
Comprehensive Iran Sanctions, Accountability, and Divestment Act of
2010, to contracts at or below the simplified acquisition threshold
(SAT), contracts for the acquisition of commercial items, and contracts
for the acquisition of commercially available off-the-shelf (COTS)
items.
1. Applicability to Contracts at or Below the SAT
41 U.S.C. 1905 governs the applicability of laws to contracts or
subcontracts in amounts not greater than the SAT. It is intended to
limit the applicability of laws to them. 41 U.S.C. 1905 provides that
if a provision of law contains criminal or civil penalties, or if the
FAR Council makes a written determination that it is not in the best
interest of the Federal Government to exempt contracts or subcontracts
at or below the SAT, the law will apply to them. Therefore, given that
the requirements of sections 102 and 106 of the Comprehensive Iran
Sanctions, Accountability, and Divestment Act of 2010 were enacted to
widen the sanctions against Iran, the FAR Council has determined that
it is in the best interest of the Federal Government to apply this rule
to all acquisitions including contracts at or below the SAT, as defined
at FAR 2.101. An exception for acquisitions at or below the SAT would
exclude a significant portion of Federal contracting and the
contractors who provide these products and services, thereby
undermining the overarching public policy purpose of the law.
2. Applicability to Contracts for the Acquisition of Commercial Items
41 U.S.C. 1906 governs the applicability of laws to contracts for
the acquisition of commercial items, and is intended to limit the
applicability of laws to contracts for the acquisition of commercial
items. 41 U.S.C. 1906 provides that if a provision of law contains
criminal or civil penalties, or if the FAR Council makes a written
determination that it is not in the best interest of the Federal
Government to exempt commercial item contracts, the provision of law
will apply to contracts for the acquisition of commercial items.
Therefore, given that the requirements of sections 102 and 106 of
the Comprehensive Iran Sanctions, Accountability, and Divestment Act of
2010 were enacted to widen the sanctions against Iran, the FAR Council
has determined that it is in the best interest of the Federal
Government to apply the rule to contracts for the acquisition of
commercial items, as defined at FAR 2.101. An exception for contracts
for the acquisition of commercial items would exclude a significant
portion of Federal contracting and the contractors who provide these
products and services, thereby undermining the overarching public
policy purpose of the law.
3. Applicability to Contracts for the Acquisition of COTS Items
41 U.S.C. 1907 governs the applicability of laws to contracts for
the acquisition of COTS items, and is intended to limit the
applicability of
[[Page 68030]]
laws to them. 41 U.S.C. 1907 provides that if a provision of law
contains criminal or civil penalties, or if the Administrator for
Federal Procurement Policy makes a written determination that it is not
in the best interest of the Federal Government to exempt contracts for
the acquisition of COTS items, the provision of law will apply.
Therefore, given that the requirements of sections 102 and 106 of the
Comprehensive Iran Sanctions, Accountability, and Divestment Act of
2010 were enacted to widen the sanctions against Iran, the
Administrator for Federal Procurement Policy has determined that it is
in the best interest of the Federal Government to apply the rule to
contracts for the acquisition of COTS items, as defined at FAR 2.101.
An exception for contracts for the acquisition of COTS items would
exclude a significant portion of Federal contracting and the
contractors who provide these products and services, thereby
undermining the overarching public policy purpose of the law.
IV. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this interim rule to have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq., because this rule will only have an impact on an offeror that is
exporting sensitive technology to Iran. Domestic entities are generally
prohibited from engaging in activity that would cause them to be
subject to the procurement bans described in this rule due to current
restrictions on trade with Iran (see, e.g., Department of the Treasury
Office of Foreign Assets Control regulations at 31 CFR part 560).
Although this rule mainly affects foreign entities, the Regulatory
Flexibility Act is for the protection of domestic small entities, not
foreign entities. For the definition of ``small business,'' the
Regulatory Flexibility Act refers to the Small Business Act, which in
turn allows the U.S. Small Business Administration (SBA) Administrator
to specify detailed definitions or standards (5 U.S.C. 601(3) and 15
U.S.C. 632(a)). The SBA regulations at 13 CFR 121.105 discuss who is a
small business: ``(a)(1) Except for small agricultural cooperatives, a
business concern eligible for assistance from SBA as a small business
is a business entity organized for profit, with a place of business
located in the United States, and which operates primarily within the
United States or which makes a significant contribution to the U.S.
economy through payment of taxes or use of American products, materials
or labor.''
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed because the number of domestic entities significantly
impacted by this rule will be minimal. DoD, GSA, and NASA invite
comments from small business concerns and other interested parties on
the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAC 2005-54, FAR Case
2010-018), in correspondence.
V. Paperwork Reduction Act
The interim rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
VI. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. FAR Case
2010-012 implemented section 102 and partially implemented section 106
of the Comprehensive Iran Sanctions, Accountability, and Divestment Act
of 2010 (Pub. L. 111-195). This interim rule is necessary because the
rule further implements section 106 of the Comprehensive Iran
Sanctions, Accountability, and Divestment Act of 2010, which was signed
on July 1, 2010. Section 106 was effective upon enactment, which
imposed a procurement prohibition relating to contracts with persons
that export certain sensitive technology to Iran entered into or
renewed on or after September 29, 2010. However, pursuant to 41 U.S.C.
1707 and FAR 1.501-3(b), DoD, GSA, and NASA will consider public
comments received in response to this interim rule in the formation of
the final rule.
List of Subjects in 48 CFR Parts 4, 25, and 52
Government procurement.
Dated: October 21, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4, 25, and 52 as
set forth below:
0
1. The authority citation for 48 CFR parts 4, 25, and 52 continues to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 4--ADMINISTRATIVE MATTERS
0
2. Amend section 4.1202 by revising paragraph (y) to read as follows:
4.1202 Solicitation provision and contract clause.
* * * * *
(y) 52.225-25, Prohibition on Contracting with Entities Engaging in
Sanctioned Activities Relating to Iran--Representation and
Certification.
* * * * *
PART 25--FOREIGN ACQUISITION
0
3. Amend section 25.703-1 by--
0
a. Revising the section heading;
0
b. Adding an introductory paragraph; and
0
c. Adding, in alphabetical order, the definition ``Sensitive
technology''.
The revised and added text reads as follows:
25.703-1 Definitions.
As used in this subpart--
* * * * *
Sensitive technology--
(1) Means hardware, software, telecommunications equipment, or any
other technology that is to be used specifically--
(i) To restrict the free flow of unbiased information in Iran; or
(ii) To disrupt, monitor, or otherwise restrict speech of the
people of Iran; and
(2) Does not include information or informational materials the
export of which the President does not have the authority to regulate
or prohibit pursuant to section 203(b)(3) of the International
Emergency Economic Powers Act (50 U.S.C. 1702(b)(3)).
0
4. Amend section 25.703-2 by revising paragraphs (a)(1) and (b)(1); and
removing paragraph (d).
The revised text reads as follows:
25.703-2 Iran Sanctions Act.
(a) * * *
(1) As required by the Iran Sanctions Act (50 U.S.C. 1701 note),
unless an exception applies in accordance with paragraph (c) of this
section, or a waiver
[[Page 68031]]
is granted in accordance with 25.703-4, each offeror must certify that
the offeror, and any person owned or controlled by the offeror, does
not engage in any activity for which sanctions may be imposed under
section 5 of the Iran Sanctions Act.
* * * * *
(b) * * *
(1) The contracting officer may terminate the contract in
accordance with procedures in part 49, or for commercial items, 12.403.
* * * * *
0
5. Revise section 25.703-3 to read as follows:
25.703-3 Comprehensive Iran Sanctions, Accountability, and Divestment
Act of 2010, section 106.
(a) The head of an Executive agency may not enter into or extend a
contract for the procurement of goods or services with a person that
exports certain sensitive technology to Iran, as determined by the
President and listed on the Excluded Parties List System at https://www.epls.gov.
(b) Each offeror must represent that it does not export any
sensitive technology to the government of Iran or any entities or
individuals owned or controlled by, or acting on behalf or at the
direction of, the government of Iran.
(c) Exception for trade agreements. The representation requirement
of paragraph (b) of this subsection does not apply with respect to the
procurement of eligible products, as defined in section 308(4) of the
Trade Agreements Act of 1974 (19 U.S.C. 2518(4)), of any foreign
country or instrumentality designated under section 301(b) of that Act
(19 U.S.C. 2511(b)) (see subpart 25.4).
0
6. Add section 25.703-4 to read as follows:
25.703-4 Waiver.
(a) An agency or contractor seeking a waiver of these requirements,
consistent with section 6(b)(5) of the Iran Sanctions Act or section
401(b) of the Comprehensive Iran Sanctions, Accountability, and
Divestment Act of 2010 (Pub. L. 111-195), and the Presidential
Memorandum of September 23, 2010 (75 FR 67025), shall submit the
request to the Office of Federal Procurement Policy, allowing
sufficient time for review and approval.
(b) Agencies may request a waiver on an individual or class basis;
however, waivers are not indefinite and can be cancelled, if warranted.
(1) A class waiver may be requested only when the class of supplies
or equipment is not available from any other source and it is in the
national interest.
(2) Prior to submitting the waiver request, the request must be
reviewed and cleared by the agency head.
(c) In general, all waiver requests should include the following
information:
(1) Agency name, complete mailing address, and point of contact
name, telephone number, and email address.
(2) Offeror's name, complete mailing address, and point of contact
name, telephone number, and email address.
(3) Description/nature of product or service.
(4) The total cost and length of the contract.
(5) Justification, with market research demonstrating that no other
offeror can provide the product or service and stating why the product
or service must be procured from this offeror, as well as why it is in
the national interest for the President to waive the prohibition on
contracting with this offeror that--
(i) Conducts activities for which sanctions may be imposed under
section 5 of the Iran Sanctions Act; or
(ii) Exports sensitive technology to the government of Iran or any
entities or individuals owned or controlled by, or acting on behalf or
at the direction of, the government of Iran.
(6) Documentation regarding the offeror's past performance and
integrity (see the Past Performance Information Retrieval System and
the Federal Awardee Performance Information and Integrity System at
https://www.ppirs.gov, and any other relevant information).
(7) Information regarding the offeror's relationship or connection
with other firms that--
(i) Conduct activities for which sanctions may be imposed under
section 5 of the Iran Sanctions Act; or
(ii) Export sensitive technology to the government of Iran or any
entities or individuals owned or controlled by, or acting on behalf or
at the direction of, the government of Iran.
(8) Describe--
(i) The activities in which the offeror is engaged for which
sanctions may be imposed under section 5 of the Iran Sanctions Act; or
(ii) The sensitive technology and the entity or individual to which
it was exported (i.e., the government of Iran or an entity or
individual owned or controlled by, or acting on behalf or at the
direction of, the government of Iran).
0
7. Amend section 25.1103 by revising paragraph (e) to read as follows:
25.1103 Other provisions and clauses.
* * * * *
(e) The contracting officer shall include in all solicitations the
provision at 52.225-25, Prohibition on Contracting with Entities
Engaging in Sanctioned Activities Relating to Iran--Representation and
Certification.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
8. Amend section 52.204-8 by revising the date of the provision and
paragraph (c)(1)(xx) to read as follows:
52.204-8 Annual Representations and Certifications.
* * * * *
Annual Representations and Certifications (NOV 2011)
* * * * *
(c) * * *
(1) * * *
(xx) 52.225-25, Prohibition on Contracting with Entities
Engaging in Sanctioned Activities Relating to Iran--Representation
and Certification. This provision applies to all solicitations.
* * * * *
0
9. Revise section 52.212-3 by--
0
a. Revising the date of the provision;
0
b. In paragraph (a), adding, in alphabetical order, the definition
``Sensitive technology''; and
0
c. Revising paragraph (o).
The revised and added text reads as follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
Offer Representations and Certifications--Commercial Items (NOV 2011)
* * * * *
(a) Definitions. * * *
* * * * *
Sensitive technology--
(1) Means hardware, software, telecommunications equipment, or
any other technology that is to be used specifically--
(i) To restrict the free flow of unbiased information in Iran;
or
(ii) To disrupt, monitor, or otherwise restrict speech of the
people of Iran; and
(2) Does not include information or informational materials the
export of which the President does not have the authority to
regulate or prohibit pursuant to section 203(b)(3) of the
International Emergency Economic Powers Act (50 U.S.C. 1702(b)(3)).
* * * * *
(o) Sanctioned activities relating to Iran. (1) The offeror
shall email questions concerning sensitive technology to the
Department of State at CISADA106@state.gov.
(2) Representation and Certification. Unless a waiver is granted
or an exception applies as provided in paragraph (o)(3) of this
provision, by submission of its offer, the offeror--
[[Page 68032]]
(i) Represents, to the best of its knowledge and belief, that
the offeror does not export any sensitive technology to the
government of Iran or any entities or individuals owned or
controlled by, or acting on behalf or at the direction of, the
government of Iran; and
(ii) Certifies that the offeror, or any person owned or
controlled by the offeror, does not engage in any activities for
which sanctions may be imposed under section 5 of the Iran Sanctions
Act.
(3) The representation and certification requirements of
paragraph (o)(2) of this provision do not apply if--
(i) This solicitation includes a trade agreements certification
(e.g., 52.212-3(g) or a comparable agency provision); and
(ii) The offeror has certified that all the offered products to
be supplied are designated country end products.
* * * * *
0
10. Revise section 52.225-25 to read as follows:
52.225-25 Prohibition on Contracting with Entities Engaging in
Sanctioned Activities Relating to Iran--Representation and
Certification.
As prescribed at 25.1103(e), insert the following provision:
Prohibition on Contracting With Entities Engaging in Sanctioned
Activities Relating to Iran--Representation and Certification (NOV
2011)
(a) Definitions. As used in this provision--
Person--
(1) Means--
(i) A natural person;
(ii) A corporation, business association, partnership, society,
trust, financial institution, insurer, underwriter, guarantor, and
any other business organization, any other nongovernmental entity,
organization, or group, and any governmental entity operating as a
business enterprise; and
(iii) Any successor to any entity described in paragraph (1)(ii)
of this definition; and
(2) Does not include a government or governmental entity that is
not operating as a business enterprise.
Sensitive technology--
(1) Means hardware, software, telecommunications equipment, or
any other technology that is to be used specifically--
(i) To restrict the free flow of unbiased information in Iran;
or
(ii) To disrupt, monitor, or otherwise restrict speech of the
people of Iran; and
(2) Does not include information or informational materials the
export of which the President does not have the authority to
regulate or prohibit pursuant to section 203(b)(3) of the
International Emergency Economic Powers Act (50 U.S.C. 1702(b)(3)).
(b) The offeror shall email questions concerning sensitive
technology to the Department of State at CISADA106@state.gov.
(c) Except as provided in paragraph (d) of this provision or if
a waiver has been granted in accordance with 25.703-4, by submission
of its offer, the offeror--
(1) Represents, to the best of its knowledge and belief, that
the offeror does not export any sensitive technology to the
government of Iran or any entities or individuals owned or
controlled by, or acting on behalf or at the direction of, the
government of Iran; and
(2) Certifies that the offeror, or any person owned or
controlled by the offeror, does not engage in any activities for
which sanctions may be imposed under section 5 of the Iran Sanctions
Act. These sanctioned activities are in the areas of development of
the petroleum resources of Iran, production of refined petroleum
products in Iran, sale and provision of refined petroleum products
to Iran, and contributing to Iran's ability to acquire or develop
certain weapons or technologies.
(d) Exception for trade agreements. The representation
requirement of paragraph (c)(1) and the certification requirement of
paragraph (c)(2) of this provision do not apply if--
(1) This solicitation includes a trade agreements notice or
certification (e.g., 52.225-4, 52.225-6, 52.225-12, 52.225-24, or
comparable agency provision); and
(2) The offeror has certified that all the offered products to
be supplied are designated country end products or designated
country construction material.
(End of provision)
[FR Doc. 2011-27784 Filed 11-1-11; 8:45 am]
BILLING CODE 6820-EP-P
